International Criminal Justice

Some critics contend that the International Criminal Court (ICC) is selective in its approach to international criminal justice. Thus, they called for withdrawal from the Rome Statute. This call is reflective of Third World Approaches to International Law (TWAIL) to the extent that it constitutes a protest against unequal treatment of the Third World. But what is somewhat overlooked is that the ICC is a court of last resort and that state parties to the Rome Statute are required to prosecute unless they are unwilling or unable. This is called the principle of complementarity. This study therefore examines TWAIL and the Rome Statute complementarity principle within the context of international criminal justice. It finds that the ICC is too eager to intervene and that in the process the Third World is being used as a guinea pig even though selectivity cannot be unequivocally established. It argues that this is hegemonic. To obviate this situation, it is argued that Third World states can prosecute for one another through direct transfer of criminal jurisdiction or through an international organization to prosecute on their behalf. Whenever the ICC wants to intervene in respect of any crime that the state party concerned is required to prosecute, the state party will indicate that another state or an international organization to which it has transferred its jurisdiction is acting as its agent and that it is the one doing the prosecution as the principal. With this, the internal situation of Third World states would have changed as envisaged in the third objective of TWAIL and they will be able to operate within international criminal justice system without being at its receiving end.